Delhi High Court
S.K. Aggarwal, Ex. Brig. vs Union Of India (Uoi) And Ors. on 24 August, 2007
Equivalent citations: 2007 LAB. I. C. 4409, 2008 (1) AJHAR (NOC) 183 (DEL.) = 2007 LAB. I. C. 4409 (2007) 144 DLT 498, (2007) 144 DLT 498
Author: T.S. Thakur
Bench: T.S. Thakur, S.N. Aggarwal
JUDGMENT T.S. Thakur, J.
1. In this petition for a writ of certiorari, the petitioner calls in question the validity of a show cause notice dated 20th April, 2000 issued by the respondents under Section 19 of the Army Act, 1950 read with Rule 14 of the Army Rules, 1954 and an order dated 11th October, 2000, issued pursuant thereto terminating the services of the petitioner on the ground that his retention in military service was undesirable. A mandamus directing the respondents to restore the petitioner to the substantive rank of Brigadier with all consequential facts has also been prayed for.
2. The petitioner was commissioned in the Army Ordnance Core of the Indian Army in the year 1965. In due course, he rose to the rank of a substantive Brigadier and took charge of the post of Commandant, Central Ordnance Depot, Dehu Road in February, 1995. On the basis of a complaint made by three General Secretaries of Workers - Union of Central Ordnance Depot alleging pilferage of government stores from the said depot, a Court of inquiry was ordered which concluded its proceedings on 8th July, 1977. The said proceedings were then put up before the General Officer, Commandingin Chief, who by an order dated 29th August, 1997 directed disciplinary action to be taken against the petitioner and ten other Army officers including two civilians. Summary of evidence was pursuant to the said directions recorded against the officers concerned including the petitioner and submitted to the GOC-in-C, Southern Command for appropriate directions. In the case of other officers, the summary of evidence was put up before the GOC-in-C, Maharashtra and Gujarat area for appropriate orders and directions.
3. The GOC-in-C, Southern Command, appears to have sought legal advice from the Deputy JAG, Southern Command before taking a final decision as to the course of action to be followed against the petitioner. The Deputy JAG, Southern Command entrusted the matter to Deputy JAG, 12 Corps who advised administrative action against the petitioner for termination of his services under the provisions of Section 19 of the Army Act, 1950 read with Rule 14 of the Army Rules, 1954. In the case of Lt. Col. Sunil Issar, Major P.S. Rana, Major N.S. Nijjar and Captain R.K. Singh, the other officers involved in the racket, the advice tendered was that they be tried by a General Court Martial. The case of Major A.D. Swamy was recommended for disposal by a summary trial while the cases against the Lt. Col. Harpreet Singh and Lt. Col. Y.K. Gokhale were recommended for disposal by taking administrative action against them.
4. The advice tendered by the Deputy JAG, 12 Corps was reviewed and analysed by Deputy JAG, Southern Command who opined that the case against the petitioner could be examined afresh upon conclusion of the trial of Lt. Col. Sunil Issar. Consequently, action against the petitioner remained deferred till the conclusion of trial of Lt. Col. Sunil Issar by the General Court Martial. Lt. Col. Issar was eventually found guilty of the charges levelled against him, and was sentenced to cashiering and rigorous imprisonment for three years by the said Court. Upon conclusion of the trial of Lt. Col. Issar, the petitioner's case was re-examined by the Deputy JAG, 12 Corps, who advised the Convening Authority that the petitioner should be tried by a General Court Martial and that cases of Major Nijjar and Captain R.K. Singh be disposed of by Summary Trial. The Convening Authority however, sent the matter back for reconsideration to Deputy JAG, 12 Corps keeping in view the administrative aspects involved in trying an officer of the rank of Brigadier. The matter was, therefore, re-examined by the Deputy JAG 12 Court who reviewed and analysed the entire evidence assembled against the petitioner and submitted a report summarizing the following acts of omission and commission of the petitioner concerning the pilferage of Winch Assemblies from the Depot:
Culpable Acts and Omissions on the Part of Accused No. 1 (Petitioner) in regard to Winch Assemblies:
The evidence discussed above reveals the following culpable acts/omissions on the part of accused No. 1:
a) On 21st March, 1996, on being informed by Major PS Rana (accused No. 5) and Lieutenant Colonel Sunil Issar (accused No. 3) about theft/loss of Winch Assemblies from store shed No. TG-17 of No. 1 Sub Depot, he improperly failed to order immediate investigations into the said loss, in contravention to the provisions contained in Para 75 of Regulations for the Army Ordnance Services (RAOS) Part I.
b) In order to create surplus Winch Assemblies, to make up for the stolen Winch Assemblies of No. 1 Sub Depot, he improperly allowed Lieutenant Colonel Sunil Issar to condition 258 serviceable Winch Assemblies (Cat Part No. LV -7/AFA-42E- 22Y-5419B) of No. 3 Sub Depot as unserviceable, well knowing that Lieutenant Colonel Sunil Issar had no authority to do so. Thereby he improperly and fraudulently got 258 serviceable Winch Assemblies of No. 3 Sub Depot valued at approximately Rs. 30,96,000/- (Rupees thirty lakh ninety six thousand only) conditioned unserviceable.
c) He got the lost/stolen Winch Assemblies (Cat Part No. LV-7/LD/AFA-42E-22Y- 5419B) of No. 1 Sub Depot made up by improperly shifting similar Winch Assemblies from No. 3 Sub Depot.
d) He forced Major PS Rana, the Sub Depot Commander, not to report the loss of Winch Assemblies in writing and not to divulge the same to anyone and threatened to place him under arrest in case he tried to do so.
Culpable Acts and Omissions on the Part of Accused No. 1 (Petitioner) in regard to Cable Winch and Rope Wire:
From the evidence as discussed above, the following culpable acts/omissions are made out against accused No. 1 : PA
a) Between 17th December, 1996 and 26th December, 1996, on being informed by Lieutenant Colonel Sunil Issar that rope wire of No. 1 Sub Depot were deficient on ground, he improperly failed to order immediate investigations into the said loss as is required vide Para 75 of the RAOS Part I (Revised Edition) 1986.
b) On or about 26th December, 1996, he improperly obtained signature of Major K.C. Tiwari on the proceedings of board of officers ordered vide letter No. 121/1/HQ dated 17th December, 1996 for conditioning of stores of No. 1 Sub Depot, knowing fully well that the said Major K.C. Tiwari had not even participated in the proceedings of the said board.
c) On or around 27th December 1996, he countersigned the proceedings of above board of officers conditioning rope wire quantity 277 and cable winch quantity 44 of No. 1 Sub Depot as unserviceable, knowing fully well that the said stores were deficient on ground, hence could not have been conditioned unserviceable.
d) On or about 17 Jan 97, he improperly approved the transfer voucher No. Adj/1SD/159 for disposal of Rope Wire Cat Part No. LV-7/LD/AFA-58126 quantity 277 valued at Rs. 57,68,414.20 (Rupees fifty seven lakh sixty eight thousand four hundred fourteen and paisa twenty only), to Salvage Sub Depot, without obtaining confirmation from competent financial authority, knowing fully well that the same was beyond his financial powers and was in contravention of Para 39 of RAOS Part II (Revised Edition), 1986.
e) On or about 17 Jan 97, he improperly approved the transfer voucher No. ADj/1SD/160 for disposal of Cable Winch Cat Part No. LV-7/FD/Co11Q-7162, quantity 44, valued at Rs. 35,200/- (Rupees thirty five thousand two hundred only), to Salvage Sub Depot without obtaining confirmation, from competent financial authority, knowing fully well that the same was beyond his financial powers and was in contravention of para 39 of RAOS Part II (Revised Edition), 1986.
5. Regarding the nature of the action against the petitioner, the Deputy JAG recommended:
Having considered all the evidence pointing at culpability of accused No. 1 as discussed above, trial of the accused by a General Court Martial had been advised vide Report on Application for Trial issued vide this office letter No. 2501/01/JAG/99 dated 20 Oct 99. Considering the trend of deposition of witnesses at the trial of Lieutenant Colonel Sunil Issar (accused No. 3) there is likelihood of evidence on the above counts being available at the trial of accused No. 1. However, the main witnesses namely accused No. 3 and accused No. 5 have been changing their statements from time to time, right from the stage of court of inquiry, mainly because of their own involvement in the transactions in question. Even the possibility of witnesses being influenced or pressurized by interested parties cannot be ruled out. This may effect the charges involving intent to defraud, though sufficient evidence is available on the charges of gross improprieties on the part of accused No. 1 in respect of the said transactions. Considering the administrative strain and time likely to be taken in conducting the trial of accused No. 1 by a General Court Martial, I am of the opinion that ends of justice would be sufficiently met by taking administrative action against accused No. 1 for termination of his services. Further, accused No. 3 who carried out the fraudulent and improper transactions related to the said incidents, in compliance of instructions of accused No. 1, has already been tried by a General Court Martial and awarded punishment of cashiering and rigorous imprisonment. It would be in the interest of justice and equity that accused No. 1, who abetted, supported and facilitated the said transactions by misusing his authority as Commandant of the Depot, be dealt appropriately for culpabilities on his part as discussed above. Administrative action against him for termination of his services under Section 19 of the Army Act read with Army Rule 14 would in my view sufficiently meet the ends of justice and I advise the same.
XXX XXX Considering the fact that witnesses who knew the details of the said transactions have been blamed by the court of inquiry and disciplinary action against them is being taken; those witnesses now tend to become evasive in their depositions and are taking a guarded approach, under these circumstances, trial of accused No. 1 by a General Court Martial will be inexpedient. Hence administrative action against him for termination of his services under Section 19 of the Army Act read with Army Rule 14 would be more appropriate. A case for the same will be required to be taken up with the Central Government and a Show Cause Notice will be required to be served to accused No. 1. Under the circumstances as discussed above, Administrative action is permissible and is a proper course of action under military law. Even the Supreme Court, in the case of Chief of the Army Staff and Ors. v. Major Dharam Pal Kukrety in Civil Appeal No. 663 of 1978, has held that it is open to the Central Government or the Chief of the Army Staff to have recourse to Army Rule 14 in the first instance without directing trial by a Court Martial.
6. The recommendations made to him were then considered by the GOC-in-C, Southern Command who recommended termination of the services of petitioner under Section 19 of the Army Act read with Rule 14 of the Army Rules. The recommendations were in the following words:
RECOMMENDATIONS OF THE GENERAL OFFICER COMMANDING-IN-CHIEF ON PRE TRIAL DOCUMENTS IN RESPECT OF IC-16640N BRIG SK AGGARWAL OF HEADQUARTERS 11 CORPS ATTACHED TO COLLEGE OF MILITARY ENGINEERING, PUNE I have perused the pre trial documents and recommend that services of IC- 16640N Brig S.K. Aggarwal of Headquarters 11 Corps attached to College of Military Engineering, Pune be terminated under Army Act Section 19 read with Army Rule 14 for the following lapses on his part:
(a) He did not initiate any action when reported about the deficiency of Winch Assemblies and the lock of Shed No. TG-17 having been replaced.
(b) Notwithstanding his own statement, Brig SK Aggarwal was fully in the know of complete action taken by Lt. Col. Sunil Issar to make up the deficiency of Winch Assemblies Quantity 258.
(c) He has feigned ignorance of deficient Winch Assemblies in 1 Sub Depot and disposal of Winch Assemblies Quantity 258 costing Rs. 7,74,000/- (Rupees Seven Lakhs and Seventy Four Thousand) to Salvage Sub Depot, OD Telegaon Dabhade to cover up the deficiencies which in any case was beyond his financial powers.
(d) He ordered conditioning of Rope Wire and Cable Winch as a special case in an unprecedented manner thereby clearly establishing personal interest and involvement in this issue.
(e) The board ordered by him for conditioning of Rope Wire and Cable Winch was a cover up action probably to make up existing deficiency.
(f) Having known that the cost of conditioned stores i.e. Cable Winch and Rope Wire was beyond his financial powers, disposed off the same without obtaining approval of Competent Financial Authority and in an irregular manner by dispatching scrap.
Station : Pune 411001 (S. Padmanabhan) Lieutenant General Dated : 22nd Jan, 2000 General Officer Commanding-in-Chief
7. The matter was eventually placed before the Chief of the Army Staff who agreed with the view expressed by the GOC-in-C, Southern Command that holding of a General Court Martial was inexpedient and impracticable and that the services of the petitioner deserved to be terminated under the provisions of Section 19 of the Army Act read with Rule 14 of the Army Rules. The holding of a General Court Martial was found to be inexpedient and impracticable for the following three reasons:
(a) Senior Officers of the level of Brig/Maj. Gen. holding important appointments will be required for composition of the GCM for trial of the Officer. If these officers are detailed for the trial, they will be away from their places of duty for long duration of time.
(b) The trial of the officer will involve huge administrative effort which may not be commensurate with the punishment awarded to the accused.
(c) The credibility of the witnesses having personal involvement in the case, is suspect and they are likely to turn hostile during the trial. Hence, the guilt of Brig. S.K. Aggarwal may not be established beyond reasonable doubt in the GCM.
8. A show cause notice was accordingly issued to the petitioner to which he submitted a reply which was placed before the Chief the Army Staff for consideration. The reply submitted by the petitioner was examined point by point and found unsatisfactory resulting in a recommendation to the Central Government for issue of an appropriate order for dismissal of the petitioner from service. The matter was finally placed before the Raksha Mantri (defense Minister), who, by an order dated 11th October, 2000, noted that the findings recorded against the petitioner were serious and included his personal involvement in fraudulent and improper transactions by his subordinates on his orders and full knowledge and support. The Raksha Mantri found that dismissal from service was the appropriate punishment to be imposed upon the petitioner.
The impugned order of dismissal was accordingly promulgated and the petitioner dismissed from service, aggrieved whereof the petitioner has filed the present writ petition as already noticed earlier.
9. Appearing for the petitioner, Mr. Avasthy made a two-fold submission before us. Firstly he contended that administrative action under Section 19 of the Army Act read with Rule 14 of the Army Rules was legally permissible only in case the competent authority was of the opinion that the trial of the officer by a court martial was inexpedient or impracticable and that further retention of the officer in service was undesirable. There was, according to Mr. Avasthy, no basis in the instant case for the Chief of the Army Staff or the Central Government to hold that the trial of the petitioner by a court martial was inexpedient or impracticable. The show cause notice did not, argued the learned Counsel, set out the grounds for holding the trial by court martial to be inexpedient or impracticable nor did the contemporaneous official record any such reason. The so called inexpediency or impracticability of a trial must therefore be held to be non-est in the eyes of law rendering the order of dismissal of the petitioner from service unsustainable.
10. Secondly, it was argued that the dismissal of the petitioner from service when he had just about 20 days left to retire on superannuation was malicious and illegal. Reliance in support of that submission was placed upon the decision of this Court in Lt. S.C. Dhingra v. Union of India and Anr. 1988 (2) Delhi Lawyer (DB) 109 and a decision of the Allahabad High Court in Shri Chaukas Ram v. Sub-Area Commander, Allahabad and Anr. 1991 Lab and IC (All) 1056.
11. On behalf of the respondents, it was on the other hand, argued by Mr. Katyal that holding of a Court Martial against the petitioner was in the facts and circumstances of the case considered impracticable and inexpedient which was a matter to be decided by the disciplinary authority and not by the Court. He urged that while the decision of the competent authority on the question of impracticability or inexpediency of holding a Court Martial was not immune from judicial review, the mere fact that two views were in a given case possible on the said question, was not sufficient for a writ Court to interfere. Reliance in support of that submission was placed by him upon a decision of the Supreme Court in Union of India and Ors. v. Harjeet Singh Sandhu . He further argued that the competent authority had objectively applied its mind and fairly come to the conclusion that it was neither expedient nor practicable to hold a Court Martial against the petitioner and that so long as there was material on record which could sustain the view taken by the competent authority, its sufficiency or insufficiency was a matter that could not be judicially reviewed by a writ court.
12. We have given our careful consideration to the submissions made at the bar and perused the record. The material facts are not in dispute. It is not in dispute that the Court of Inquiry Proceedings and the summary of evidence recorded pursuant thereto were in conformity with the provisions of the Army Act and the Rules framed there under. There is no challenge to the said proceedings in the present writ petition nor was it argued by Mr. Awasthy, that the proceedings in question suffered from any procedural or other irregularity. It is also not in dispute that upon an analysis of the evidence assembled during the summary of evidence proceedings, the respondents had discovered the involvement of the petitioner in the pilferage of winch assemblies from the Depot and the attempted cover up of the same. The analysis of the evidence recorded in the presence of the petitioner in which he was given the fullest opportunity to cross examine the witnesses, had led to definite conclusions being drawn at different levels of Military hierarchy suggesting his personal involvement. No attempt was made before us by Mr. Awasthy to assail the said conclusions either on the ground that the same were without any evidence or that the same were irrational or far-fetched. Even in the writ petition, there is no assertion to the effect that the summary of evidence recorded against the petitioner did not establish any case of misconduct or misdemeanor against him. All that the petitioner has alleged is that the decision to proceed against the petitioner had been taken on the basis of the Court of Inquiry proceedings which was, according to the petitioner, contrary to Rule 182 of the Army Rules. That, however, is far from saying that the summary of evidence recorded against the petitioner did not establish any actionable wrong on his part. Suffice it to say that the respondents have upon appreciation of the evidence which was put through the fire of cross examination concurrently found that the petitioner's acts of omission and commission enumerated in the GOC-in-C's recommendations extracted by us in the earlier part of this order, were culpable in nature; and called for disciplinary action against him. There was, for that conclusion, evidence on record which the competent authority was entitled to believe as indeed it has done in the instant case. The decision to proceed against the petitioner, whether by way of administrative action within the contemplation of Section 19 of the Army Act or by way of a trial before a General Court Martial cannot, therefore, be faulted. It was not a case where the competent authority was acting without any basis whatsoever so as to call for interference by a writ Court.
13. The only question that falls for determination in the above backdrop which Mr.Awasthy took pains to argue was whether the competent authority could have invoked Section 19 of the Army Act in the absence of what according to the learned Counsel were essential pre-requisite for holding a trial by Court Martial to be impracticable or inexpedient. Trial by Court Martial was the rule and punishment by invoking administrative powers only an exception, argued Mr. Awasthy. For the latter course of action, the Chief of the Army Staff or the Central Government had to record a definite opinion that trial of the delinquent by a Court Martial was either inexpedient or impracticable. Besides the opinion so recorded must be founded on grounds that are verifiable. In other words, the satisfaction of the competent authority that a trial by Court Martial is inexpedient or impracticable must be based on an objective assessment of the facts and circumstances of the case and not an arbitrary or whimsical impulse on the part of the competent authority.
14. Section 19 of the Army Act empowers the Central Govt. to dismiss or remove from service any person subject to the provisions of the said Act. It reads:
Termination of service by Central Government. - Subject to the provisions of this Act and the rules and regulations made there under the Central Government may dismiss, or remove from the service, any person subject to this Act.
15. Since the power vested in the Central Government is exercisable "subject to the provisions of the Army Act and the Rules and Regulations made there under", any dismissal or termination must conform to the provisions of Rule 14 of the Army Rules which prescribes the procedure for the exercise of the said power. Rule 14 reads:
14. Termination of service by the Central Government on account of misconduct.-
(1) When it is proposed to terminate the service of an officer under Section 19 on account of misconduct, he shall be given an opportunity to show cause in the manner specified is Sub-rule (2) against such action-
Provided that this sub-rule shall not apply-
(a) Where the service is terminated on the ground of misconduct which has led to this conviction by a criminal court; or
(b) Where the Central Government is satisfied that for reasons, to be recorded in writing, it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause.
(2) When after considering the reports on an officer's misconduct, the Central Government or the Chief of the Army Staff is satisfied that the trial of the officer by a court-martial is inexpedient or impracticable, but is of the opinion, that the further retention of the said officer in the service is undesirable, the Chief of the Army Staff shall so inform the officer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defense:
Provided that the Chief of the Army Staff may withhold from disclosure any such report or portion thereof if, in his opinion, its disclosure is not in the interest of the security of the State. In the event of the explanation of the officer being considered unsatisfactory by the Chief of the Army Staff, or when so directed by the Central Government, the case shall be submitted to the Central Government, with the officer's defense and the recommendation of the Chief of the Army Staff as to the termination of the officer's service in the manner specified in Sub-rule (4).
(3) Where, upon the conviction of an officer by a criminal court, the Central Government or the Chief of the Army Staff considers that the conduct of the officer which has led to his conviction renders his further retention in service undesirable a certified copy of the judgment of the criminal court convicting him shall be submitted to the Central Government with the recommendation of the Chief of the Army Staff as to the termination of the officer's service in the manner specified in Sub-rule (4).
(4) When submitting a case of the Central Government under the provisions of Sub-rule (2) or Sub-rule (3), the Chief of the Army Staff shall make his recommendation whether the officer's service should be terminated, and if so, whether the officer should be-
(a) dismissed from the service; or
(b) removed from the service; or
(c) Compulsorily retired from the service.
(5) The Central Government after considering the reports and the officer's defense, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Chief of the Army Staff, may-
(a) dismissed or remove the officer with or without pension or gratuity; or
(b) compulsorily retire him from the service with pension and gratuity, if any, admissible to him.
16. A reading of the above would show that the power to dismiss or terminate the services of any one subject to the Army Act, can be exercised subject to the following two pre-requisites:
i) The Chief of the Army Staff or the Central Government are of the opinion that the trial of the person concerned by a Court Martial is inexpedient or impracticable but his further retention in service is undesirable; and
ii) The person concerned is given an opportunity to submit his explanation and defense in writing after providing to him all reports adverse to him.
17. There is no dispute that the requirement of giving an opportunity of submitting an explanation and defense, was duly complied with in the present case. A show cause notice calling upon the petitioner to submit his explanation why his services be not terminated under Section 19 of the Army Act was admittedly served upon the petitioner, in which it was inter alia stated that in the opinion of the Chief of Army Staff, holding of a Court Martial against the petitioner was inexpedient and impracticable. The show cause notice also enumerated in paras (a) to (h) thereof the acts of omission and commission on the basis whereof the Chief of Army Staff was satisfied that the petitioner's continuance in service was undesirable and forwarded to the petitioner the reports on the basis whereof the COAS had drawn the said conclusions. It is common ground that the petitioner had on receipt of the show cause notice and the reports relied upon in the same, submitted a reply which was duly considered by the Chief of the Army Staff before recommending the dismissal of the petitioner to the Central Government. The second requirement for a valid invocation of the power of dismissal available under Section 19 was, therefore, fully satisfied in the present case.
18. That brings us to the question whether the Chief of Army Staff was satisfied that a trial by court martial was inexpedient or impracticable in the instant case. A two-fold submission was made by Mr. Awasthy in this regard. The first limb of his submissions was that the show cause notice issued to the petitioner did not set out the reasons why it was considered inexpedient or impracticable to try the petitioner by a General Court Martial. This was, according to Mr. Awasthy, essential for passing a valid order under Section 19 of the Army Act read with Rule 14 of the Army Rules. Reliance was placed by him upon two single bench decisions of this Court in Ashwani Kumar Katoch v. Union of India and Ors. 1988 (4) SLR 208 and Lt. Col. Jagga Singh v. Union of India and Ors. 1995 (IV) AD (Delhi) Page 333.
19. In Ashwini Kumar Katoch's Case (supra), the show cause notice did not mention the reason why it was considered inexpedient or impracticable to hold a Court Martial. The Court had, therefore, directed the respondents to produce the relevant official record to find out whether any reasons had been recorded on the relevant file. The respondents did not, however, produce the relevant record leaving no option for the Court but to hold that no reasons for holding the trial by a Court Martial to be inexpedient or impracticable were recorded, thereby rendering the order of dismissal legally bad. That is not the position in the present case. While the show cause notice does not specify the reasons why trial of the petitioner by a general court martial was inexpedient or impracticable, the official record produced by the respondents before us contains those reasons which we have already extracted in the earlier part of this judgment. It is not, therefore, a case of no reasons having been recorded. It is fairly well settled that so long as the contemporaneous official record bears the reasons on the basis of which the authority passing the order has arrived at this conclusion, it does not matter whether the same were enumerated in the formal expression of that order. That is so because the requirement of recording reasons arises from the need for a due and proper application of mind by the authority making the order. What is, therefore, important is whether reasons for the conclusion of the authority are available on the file. If they are so available, application of mind is demonstrated rendering the failure to enumerate the reasons in the show cause notice or the final order of dismissal inconsequential.
20. The decision of this Court in Lt. Col. Jagga Singh's case, also does not lend any support to the petitioner. Unlike the present case, no reasons were recorded by the COAS while taking action against Lt. Col. Jagga Singh. It is noteworthy that the decision in Jagga Singh's case stands over-ruled by the decision of the Supreme Court in Union of India and Ors. v. Harjeet Singh Sandhu , no matter on another point. Their lordships have contrary to what was observed in Jagga Singh's case, held that the powers under Section 19 could be invoked even after the period of limitation for holding a trial by court martial had expired. The court declared the law on the subject in the following words:
In the scheme of the Act and the purpose sought to be achieved by Section 19 read with Rule 14, there is no reason to place a narrow construction of the term 'impracticable' and therefore on availability or happening of such events as render trial by Court-martial impermissible or legally impossible or not practicable, the situation would be covered by the expression' the trial by Court-martial having become "impracticable".
21. The second limb of the argument advanced by Mr. Avasthy was that there was no real basis for the Chief of the Army Staff to record the satisfaction that trial of the petitioner by a General Court Martial was 'inexpedient' or 'impracticable'. He submitted that the satisfaction of the Chief of the Army Staff regarding 'inexpediency' or 'impracticability' of a trial by General Court Martial was subject to judicial review by this Court, which according to him, implies that this Court could go into the question whether there was a sufficient reason or basis for the Chief of the Army Staff to record his satisfaction. Reliance in support was placed by Mr. Avasthy upon the decisions of this Court in Ashwani Kumar Katoch v. UOI and Ors. 1988 (4) SLR 208, Piyare Lal v. UOI and Ors. 1996 (1) AD Delhi 145, Lt. Col. Jagga Singh v. UOI and Ors. 1995 (IV) AD Delhi 333.
22. The expression 'inexpedient' or 'impracticable' appearing in Rule 14(2) of the Army Rules has not been defined either in the Army Act or the Rules framed there under. That being so, the said two expressions shall have to be understood in terms of the meaning they carry in common parlance, having regard to the scheme of the enactment in which the said expressions appear, the context in which the same are used and the legislative history of the Law. Principles of statutory interpretation, we must bear in mind, permit reference to dictionaries but with a note of caution, viz., dictionaries are not dictators of statutory construction and a statute cannot be construed with the dictionary in one hand and the statute in the other'. The scheme, context and legislative history of the enactment in which the expressions that fall for interpretation appear are as important as the literal meaning given to a word or expression in a dictionary. Having said so, we may refer to the meaning of the word 'expedient' and 'practicable' as appearing in Black's Law Dictionary, which defines the said two expressions as under:
Expedient Apt and suitable to end in view. Wernet v. Biederman 64 Ohio App. 423 : 28 N.E. 2D 957, 959. Whatever is suitable and appropriate in reason for the accomplishment of a specified object. Practicable, practicability' Practicable is that which may be done, practiced, or accomplished; that which is performance, feasible, possible; and the adverb practicability means in a practicable manner. Within liability policy providing that when accident occurred, written notice should be given by or on behalf of insured to insureer or any of its authorized agents as soon as practicabile, "practicable" was held to mean feasible in the circumstances. Frey v. Security Ins. Co. of Hartford D.C. Pa. 331 F. Supp. 140, 143.
23. The same dictionary defines 'Impracticability' as under:
'Impracticability' The term 'impracticability' in federal rule (Fed. R. Civ. P. 23) providing for class action if class is so numerous that joinder of all members is impracticable does not mean 'impossibility' but only the difficulty of inconvenience of joining all members of the class. Union Pac. R. Co. v. Woodahl, D.C. Mont. 308 F. Supp. 1002, 1008.
24. In Oxford English Dictionary, the word 'expedient' has been given the following meaning:
"Expedient." adj. 1. Convenient and practical although possibly improper or immoral. 2. Suitable or appropriate. In. a means of attaining an end, especially one that is convenient but possibly improper.
25. The same Dictionary defines'impracticable' thus:
"Impracticable." adj. Impossible in practice to do or carry out.
26. The above definitions have been referred to and utilized by the Apex Court as also by this Court in a number of cases arising under the Army Act and other enactments. We may at this stage briefly refer to some of those decisions.
27. In Murlidhar Agarwal v. State of Uttar Pradesh and Ors. , the dispute arose under the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947. Section 7(A) of the said Act authorizes the District Magistrate to take action against unauthorised occupation provided that no order under the said Section could be passed if the District Magistrate was satisfied that there was undue delay or that it was otherwise inexpedient to do so. What is "inexpedient" within the meaning of the above provision thus fell for consideration before the Apex Court. Referring to the provisions of Proviso to Section 7(A) and the dictionary meaning of the word "inexpedient", the Court held that great deal of discretion must be vested in the District Magistrate and in the State Government when disposing of a Revision against an order passed by the District Magistrate as several facts would enter the making of the verdict whether it is "inexpedient" to pass an order of eviction under the Section. The Court declared that inasmuch as the Government had considered long user of the premises while holding the eviction of the occupant to be inexpedient, it had not got influenced by any irrelevant consideration warranting interference. The following passage from the decision is in this regard apposite:
The proviso to Sub-section (1) of Section 7-A is couched in wide language. The dictionary meaning of the Word 'inexpedient' is: Not expedient; disadvantageous in the circumstances; unadvisable, impolitic. See Shorter Oxford English Dictionary, Illustrated, Vol. 1, 3rd ed., (1964), p. 997. The circumstances that could be taken into consideration to decide whether it is expedient or inexpedient to order an eviction under the section are not mentioned in the proviso. A great deal of discretion must, therefore, be vested in the District Magistrate and in the State Government when disposing a revision from an order passed by the District Magistrate as several factors would enter the making of the verdict whether it is inexpedient to pass an order of eviction under the section. In this case, the State Government has taken into account two reasons for exercising its discretion under the proviso in favor of respondent No. 2:
(1) that respondent No. 2 was in possession from 1953 onwards and was conducting a cinema in the premises after obtaining a license from the District Magistrate under the U. P. Cinema Regulation Act; (2) that the District Magistrate when granting the license to conduct the cinema must have been satisfied that the respondent was in lawful occupation of the premises. In other words, what in substance the State Government said was, that respondent No. 2 has been using the premises for conducting cinema from 1953 on the basis of his possession of the premises and that it would be inexpedient to evict him at this stage. We cannot say that the circumstances taken into account are irrelevant for the exercise of the discretion.
28. In State of Gujarat v. Jamnadas G. Pabri , the Apex Court explained the meaning of the word "expedient" thus:
The word 'expedient' has several shades of meaning. In one dictionary sense, "expedient" (adj) means 'apt and suitable to the end in view', practicable and 'efficient', politic; advisable fit, proper and suitable to the circumstances of the case'. In another shade, it means a devise 'Characterized by mere utility rather than principle, conducive to special advantage rather than to what is universally right'.
29. In Chief of the Army Staff v. Major Dharampal Kukrety , the apex Court was dealing with a situation where the finding of a Court Martial was in the opinion of the Chief of the Army Staff and the Central Government perverse even after the matter had been remitted back to it for revision. The question was whether the Government or the Chief of the Army Staff could take recourse to Rule 14 of the Army Rules on the ground that trial by Court Martial was 'inexpedient' or 'impracticable'. Referring to the meaning of the expression 'inexpedient', the Court held that if the Chief of the Army Staff was of the opinion that further retention of the Officer in service was undesirable, recourse could be taken to Rule 14 as in the circumstances indicated above, a fresh trial by a Court Martial could certainly be said to be inexpedient and impracticable. The Court noticed that the course open to the Government or the Chief of the Army Staff was not clear from any definitive judgment delivered by it. In addition, three other decisions suggested a different course of action to be followed in such a situation. The circumstances made a fresh trial inexpedient and impracticable, declared their Lordships.
30. The provisions of Section 19 with Rule 14(2) next fell for consideration in UOI v. Harjeet Singh Sandhu . One of the issues that arose for consideration in that case was whether the power under Section 19 read with Section 14 could be exercised solely on the ground of the Court Martial proceedings having become time barred under Section 122 of the Army Act. Overruling the earlier decision rendered by their Lordships in Major Radhakrishnan v. UOI and Ors. , the Court held that there was no reason for placing a narrow construction upon the term 'impracticable' appearing in Rule 14. The result was that upon the happening of an event which renders a trial by Court Martial impermissible, illegal or impossible, such a trial can be said to have become 'impracticable'.
31. More importantly, in Harjeet Singh Sandhu's case (supra), the Court dealt with the scope of judicial review in regard to an order passed by the competent authority under Section 19 read with Rule 14 of the Army Act and the Rules and held that while exercise of the power under the said provisions was subject to judicial review, the truth, correctness or adequacy of the material available before the authority exercising the power cannot be revalued or weighed by the Court. Even if some of the material on which action is taken was found to be irrelevant, the Court would still not interfere so long as there was some material on which the action could be sustained. The following passage is in this regard instructive:
Exercise of power under Section 19 read with Rule 14 is open to judicial review on well settled parameters of administrative law governing judicial review of administrative action such as when the exercise of power is shown to have been vitiated by malafides or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a clear case of extraneous and/or abuse to power or what is sometimes called fraud on power, i.e. where the power is exercised for achieving an oblique end. The truth or correctness or the adequacy of the material available before the authority exercising the power cannot be revalued or weighed by the court while exercising power of judicial review. Even if some of the material, on which the action is taken, is found to be irrelevant, the court would still not interfere so long as there is some relevant material available on which the action can be sustained. The court would presume the validity of the exercise of power but shall into hesitate to interfere if the invalidity or unconstitutionally is clearly demonstrated. If two views are possible, the court shall not interfere by substituting its own satisfaction or opinion for the satisfaction or opinion of the authority exercising the power.
32. The following propositions emerge from a conspectus of the above discussion:
1) Since expression 'inexpediency' or "impracticability" appearing in Rule 14(2) of the Army Rules have not been defined in the Army Act or the Rules framed there under, the said expressions shall have to be understood in their literal meaning as given in the dictionaries, having regard at the same time to the scheme of the Act, the context in which the expressions have been used and the legislative history of the enactment.
2) Since the Army Act or the Rules do not stipulate the circumstances by reference to which the 'expedience' or 'inexpedience' of holding a Court Martial has to be determined, a wide discretion is given to the Chief of the Army Staff and the Government in taking facts and circumstances into consideration while determining such "inexpediency" or "impracticability" of a trial by Court Martial.
3) The exercise of power by the competent authority under Section 19 read with Section 14 of the Army Act and the Rules, is not immune from judicial review. But while exercising the said power, a Writ Court would not reappraise or weigh the truth, correctness or the adequacy of the material available before the authority exercising the power.
4) Even if the Writ Court finds that some of the material on which the action was taken, was found to be irrelevant, the Court would still not interfere so long as there is some relevant material available on which the action can be sustained. The Court would presume the validity of the exercise of power but shall not hesitate to interfere if the invalidity or unconstitutionality is satisfactorily demonstrated.
5) If two views are possible, the Court shall not interfere by substituting its own satisfaction or opinion for the satisfaction of the authority exercising the power. Applying the above decisions to the instant case, we find that the Chief of the Army Staff has held trial by General Court Martial to be inexpedient and impracticable for three reasons. The first is that senior Officers of the level of Brig/Maj. Gen. holding important appointments will be required for composition of the GCM for trial of the Officer. If these officers are detailed for the trial, they will be away from their places of duty for long duration of time. The second reason is that the trial of the officer will involve huge administrative effort which may not be commensurate with the punishment awarded to the accused. The third reason is that the credibility of the witnesses having personal involvement in the case, is suspect and they are likely to turn hostile during the trial.
33. There is, in our view, no perversity in the above reasons to warrant any interference with the conclusion drawn on the basis thereof. The respondents have in elaboration of the above reasons urged in the written submissions filed by them that trial of the petitioner would have involved detailment of two officers of the rank of Major General and Flying Officers in the rank of Brigadier for the General Court Martial, which would have kept them away from their duty station for long duration which was not considered proper keeping in view the prevalent security scenario in the wake of the Kargil War. The petitioner has, in his reply, questioned the assertion of the respondents and urged that Section 113 of the Army Act with Rule 40 of the Army Rules requires a General Court Martial to comprise not less than five officers, each of whom has held a Commission for not less than three whole years and of whom not less than four are of a rank not below that of a Captain. Rule 40(2) of the Army Rules, however, prescribes that all members of the Court Martial shall be of a rank not lower than that of the accused, unless in the opinion of the convening officer, officers of such rank are not available. Certain additional restrictions and guidelines are laid down in para 460 of defense Service Regulations which, according to the petitioner, nowhere prescribes that a Court Martial must have one or more members holding a rank superior to that held by the accused. Reference is also made to para 460(d) of the defense Service Regulations, according to which if a trial is likely to be prolonged, it will usually be expedient to form the Court of a larger number than the legal minimum and two to four additional members should be detailed. Waiting members should also be detailed to meet reduction by challenge.
34. It was in the above context contended by Mr. Awasthy that the respondents were exaggerating the requirement of senior officers needed for holding a General Court Martial against the petitioner. The requirement was limited to a minimum of five officers subject to the provisions of Rule 40(2) of the Army Rules and para 460 of the defense Service Regulations. Additional members could be detailed in cases where the trial was likely to be prolonged.
35. We do not think it is necessary for us to determine the precise number of officers required to be assembled for a trial by Court Martial of an officer holding the rank of a Brigadier. While according to the petitioner, the requirement was limited to five officers holding the rank of Brigadier with additional members nominated to meet reduction by challenge, the respondents insist that a large number of officers were required to be detailed for holding a General Court Martial, which was not feasible keeping in view the security scenario then prevailing. What is important is that the conclusion that a General Court Martial was "inexpedient" or "impracticable" was based on the operational feasibility of making a large number of officers holding high ranks available for conducting such a Court Martial and the administrative cost involved in any such exercise having regard to the gravity of the offence committed by the petitioner and the punishment likely to be imposed upon him. There can be no manner of dispute that the considerations that prevailed with the Chief of the Army Staff in deciding whether or not a General Court Martial against the petitioner was "expedient" or "practicable" were germane to the question that fell for his decision. He cannot be said to have been influenced by irrelevant or extraneous considerations. If that be so, as indeed it appears to us to be the case, the question is whether this Court would be justified in examining whether officers required for holding the Court Martial could, notwithstanding the perception of the Army regarding the prevailing security scenario, have been spared for conducting a Court Martial. Our answer to that question is in the negative. If the consideration which prevailed with the Chief of the Army Staff was relevant to a proper exercise of the power vested in him, the adequacy of the material that went into such consideration or the tenability of the perceptions on which the decision was taken, cannot be examined leave alone substituted by the Court's opinion on the same. It is difficult for this Court to sit in judgment over the perceptions of the Army or the Chief of the Amy Staff for that matter regarding the compulsions arising from the security scenario eight years after the Kargil conflict. It is much more difficult for this Court to hold that officers of the rank of Brigadiers could have been spared from the places they were deployed to hold a Court Martial against the petitioner without any prejudice to the duties assigned to posts held by them.
36. So also, the administrative expense involved in detailing officers was a relevant consideration especially on a comparison to the gravity of the offense committed by the petitioner or the punishment that may be imposed upon him. The credibility of witnesses who were themselves involved in the pilferage and the fear of their turning hostile was also an area directly related to the expediency of holding the trial, if not its practicability.
37. The argument that the respondents avoided the holding of a Court Martial simply because the petitioner may have come out clean in the same looks attractive but the expression "inexpedient" is wide enough to enable the authority exercising power under Section 19 read with Rule 14 to decide whether it is at all advantageous to go for a full fledged trial having regard to the pitfalls that may frustrate the very purpose of any such exercise.
38. In the totality of the above circumstances, therefore, there was nothing illegal, irrational or irregular about the view taken by the Chief of the Army Staff that a trial by General Court Martial was not in the present case 'expedient' or 'practicable'. Whether or not trial by a Court Martial is expedient or practicable shall have to be judged in the peculiar facts and circumstances of each case. There is no strait jacket formula applicable in such cases which have to be decided in the light of the attendant facts and circumstances of each case.
39. The only other submission urged on behalf of the petitioner was that exercise of the administrative power dismissing the petitioner from service when he had just about a few months left to retire, was not justified. We do not think so. The charges against the petitioner were quite serious. The matter had been pending for a long period. In the circumstances, there were only two choices available to the respondents, namely, (i) to try the petitioner by a General Court Martial; and (ii) to take administrative action against him. Inasmuch as the respondents followed the second course of action, they did not commit any illegality nor can the order be said to be either incompetent, illegal or unfair simply because the dismissal came shortly before the superannuation of the petitioner. If the conduct of the officer is blameworthy which renders his retention in service undesirable, the exercise of power of dismissal after giving him a show cause notice would not be contra indicated. That is precisely what has happened in the present case. The respondents have, on a proper evaluation of his role in the entire episode of pilferage of stocks from the Depot come to the definite conclusion that his retention in service was undesirable.
40. There is no merit in this writ petition, which fails and is hereby dismissed but in the circumstances, without any orders as to costs.